Hon. Eliot SpitzerAttorney General of the State of New YorkBy: Richard Lombardo, Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

October 1, 2003

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

The defendant, State of New York, seeks dismissal of the amended claim pursuant
to CPLR 3211 (a) (7) and Court of Claims Act § 10 and § 11 on the
basis that the claim fails to state a cause of action and is untimely.

Claimant, Melvyn Kaufman, is the principal officer and/or managing member of
151617 LLC and 1819 LLC[1], the entities which
own and maintain 1320 and 1330 Flagler Drive, Mamaroneck, New York (see Kaufman
Affidavit in Opposition to Motion, Paragraph 1). The amended claim, served upon
the Attorney General and filed with the Clerk of the Court on March 5, 2003,
consists of 33 pages, 105 paragraphs and has 54 exhibits attached to it. The
amended claim asserts six causes of action.

Previously, on November 15, 2002, claimants served a notice of intention to
file a claim upon the Attorney General (see Exhibit A attached to Motion). A
claim was served upon the Attorney General on November 18, 2002 (see Exhibit B
attached to Motion) and filed with the Clerk of the Court on the same
date.

The amended claim asserts:

"3) The State of New York, by acting and/or failing to act through certain of
its officers and agents, have caused the irreversible destruction of the
ecosystem which had previously existed at and on Claimants' waterfront
properties where he has resided for forty five (45) years thereby causing
substantial damage to Claimants' properties.

4) The property damages and injuries for which this claim is made were
discovered on or about October 16, 2002 at 1320 and 1330 Flagler Drive,
Mamaroneck, New York upon receiving a report from Dr. J. Evan Ward from the
University of Connecticut Department of Marine Services. Annexed hereto as
Exhibit "BBB" is a true and accurate copy of the report prepared by Dr. J. Evan
Ward.

5) Specifically, the area north of the concrete block, between the seawall and
the rock breakwater (Claimants' properties) have undergone dramatic and
devastating changes. This area has been changed from a rocky and sandy
intertidal ecological habitat dominated by epifaunal organisms to an intertidal
mud flat dominated by infaunal organisms. If succession is permitted to
continue the salt marsh grasses will continue to propagate and will convert the
entire area into a salt marsh habitat representing a total destruction of the
previously existing ecological habitat. Additionally, the ecological
destruction has spread so far so as to impact areas of Claimants' properties not
confined by the sea wall and breakwater."

From reading the amended claim, it appears that the claim had its genesis from
a December 1992 storm which destroyed the "entire column support system, pier
deck and hand rail of an elevated wood gangway leading to a stone breakwater"
located on the property of claimants' next door neighbor, in a tidal wetlands
area (see Amended Claim, Paragraph 6). The storm allegedly left only the
remains of the stone and concrete base and wooden stanchions (id.).
Subsequent to the storm, the then owner of the property applied for and received
permits from the Village of Mamaroneck, the New York State Department of
Environmental Conservation (hereinafter DEC), the Department of State Office of
Coastal Management and the Department of the Army, New York Corp of Engineers
which authorized reconstruction of the elevated wood gangway (id.
Paragraph 7). The claimants allege that all the permits expired, the work was
not done and the owner sold the property. In April 1999 the new owners, the
Kehlers, submitted an application to the Village for a building permit to repair
an existing dock (id. Paragraphs 8-11). The claim further alleges that
the new concrete block appears to have been created as follows:

"a) A wood frame was constructed which rested on top of the remains of the
1992 stone and concrete base, a frame which was markedly higher than the remains
of the preexisting base; and

b) The wood frame was then filled in with rubble and by pouring concrete.
This construction work resulted in a new concrete block being created which was
completely solid and markedly higher than the preexisting stone and concrete
base. See photograph annexed hereto as Exhibit ‘AAA'" (Amended Claim,
Paragraph 11 (a) and [b]).

It is further asserted that the Kehlers did not notify the Federal, State or
local authorities, or Mr. Kaufman, of their plan to replace the wooden gangway
with a solid concrete block. By letter dated May 12, 1999 Mr. Kaufman notified
DEC of the presence of the concrete block (id. Paragraph 14). On June
11, 1999 a DEC employee came to the site and investigated Mr. Kaufman's
complaint and two violations of the Environmental Conservation Law were noted
(see Amended Claim, Paragraph 19 and Exhibit I attached thereto). By letter
dated November 29, 1999 DEC advised Mr. Kaufman that following an investigation,
DEC had issued a written warning to the Kehlers for doing work without proper
authorization from DEC (id. Paragraph 33 and Exhibit U attached thereto).
"Outraged with only a warning being issued" Mr. Kaufman sent two letters to DEC
Commissioner Cahill in December 1999 requesting that additional action be taken
(id. Paragraph 34). In February and April 2000 Commissioner Cahill wrote
to Mr. Kaufman and advised him that he had reviewed the matter and determined
that DEC's determination was appropriate and reasonable (id. Paragraphs
36 and 41).

By letter dated May 2, 2000 Mr. Kaufman's
wife[2] advised DEC that the concrete block had
affected tidal wetlands, obstructed and altered the movement of water flow,
created a new sand beach in front of her property and caused sea grass in the
area around the concrete block to disappear (Exhibit DD attached to Amended
Claim). In response, on May 31, 2000 the DEC Region 3 Director wrote to Mrs.
Kaufman advising that after reviewing the information she provided to DEC and
another site visit, DEC reiterated its conclusion "that no additional loss of
tidal wetland habitat occurred as a result of this project" (Exhibit EE attached
to Amended Claim).

By letter dated April 30, 2001 Ms. Atwood forwarded to DEC a copy of a report
prepared by a Professional Engineer of the VSA Group which detailed the loss and
damage to the marshland and migration of the wetlands (id. Paragraph 45
and Exhibit FF annexed thereto). By letter dated May 22, 2001 the new DEC
Commissioner[3] advised Ms. Atwood that she had
reviewed the submitted materials and was satisfied that the steps taken by her
staff were reasonable and appropriate[4]
(id. Paragraph 46 and Exhibit GG attached thereto).

The amended claim asserts six causes of action. The first asserts that the
State was negligent and grossly negligent in failing to prevent destruction of
the ecosystem which previously existed at and on claimants' waterfront
properties and for improperly handling claimants' complaints regarding
conditions on the properties. The second cause of action asserts that
defendant's employees in a "manner constituting depraved indifference in regard
to the ecology of the Long Island Sound failed to take any action regarding the
construction of a solid concrete block at 1340 Flagler Drive" (Amended Claim,
Paragraph 69). The third cause of action alleges intentional and malicious
malfeasance in failing to adequately address claimants' complaints, in failing
to take action, properly investigate, evaluate and inspect claimants'
complaints. The fourth cause of action alleges that defendant's employees
misrepresented facts to Ms. Atwood for the purpose of deceiving the claimants.
The fifth cause of action alleges passive nonperformance in that defendant's
employees failed to take action after discovering violations of the
Environmental Conservation Law. The sixth cause of action asserts that
defendant's employees owed a special duty to claimants and breached that
duty.

The State now moves to dismiss the claim on the following grounds: (1) failure
to state a cause of action; (2) the claim is not justiciable; (3) the relief
sought is equitable in nature and obtainable only in an Article 78 proceeding in
Supreme Court; (4) DEC's determination was discretionary in nature and is a
quasi-judicial determination protected from liability; (5) the facts alleged are
not sufficient to establish that a special duty was owed to claimants; (6) the
notice of intention and claim failed to meet the particularity requirements of
Court of Claims Act § 11 and therefore the amended claim is untimely; (7)
the notice of intention and claim were untimely served and filed and therefore
the amended claim is untimely.

The Court will first deal with claimants' argument that the State's motion must
be denied on the basis that the State has waived any objection to the timeliness
of the filing of the claim.

As stated previously, claimants served a notice of intention upon the Attorney
General on November 15, 2002 and served and filed a claim on November 18, 2002.
By notice of motion dated December 27, 2002, returnable on January 22, 2003, the
State made a pre-answer motion to dismiss the claim to the assigned Judge. The
motion was adjourned to April 9, 2003 when the assigned Judge issued an order of
recusal which was filed in the Clerk's Office on February 25, 2003 (see Exhibit
A attached to Affirmation in Opposition). The matter was then assigned to the
undersigned. Thereafter, claimants served and filed an amended claim on March
5, 2003.

By stipulation filed in the Clerk's Office on April 4, 2003 the parties agreed
to the withdrawal of the original motion to dismiss and agreed that the
defendant's time to answer the amended claim be extended to May 23, 2003 (see
Exhibit E attached to Motion). A subsequent stipulation extended the
defendant's time to answer the amended claim or to move against it to May 30,
2003 (see Exhibit D attached to Affirmation in Opposition). The Court notes
that the State's motion was timely served.

Claimants now assert that by withdrawing the first motion to dismiss without
reserving the defense of "timeliness" defendant has waived its rights to object
on those grounds in the present motion or in its answer. Claimants' counsel
asserts:

"Although the Defendant did raise the timeliness issue in its first motion to
dismiss, the Defendant's withdrawal of that motion without a reservation of the
defense is the same as if the Court had decided the motion and rejected said
defense".

Counsel further asserts that this second motion is not permitted pursuant to
CPLR 3211 (e) which permits only one motion to dismiss pursuant to CPLR 3211 (a)
(7).

The Court rejects claimants' arguments. Claimants service and filing of an
amended claim as provided by CPLR 3025 superceded the original claim making the
original motion to dismiss moot. Defendant had 40 days to serve and file an
answer to the amended claim or to move to dismiss (Uniform Rules for the Court
of Claims § 206.7). The parties stipulated to an extension of defendant's
time to answer or so move. As the original motion was rendered moot, the Court
finds that the instant motion does not violate the single motion rule under CPLR
3211 (e).

The court will deal with the timeliness issue first. Court of Claims Act
§ 10 (3) requires that a claim seeking damages for injuries caused by the
negligence or unintentional tort of a State employee shall be filed with the
Court and served upon the Attorney General within 90 days after accrual of the
claim unless within that time period the claimant serves upon the Attorney
General a notice of intention to file a claim, in which event, the claim must be
served and filed within two years after accrual.

For purposes of the Court of Claims Act, a claim accrues when damages are
reasonably ascertainable (Arbor Hill Partners v New York State Commr. of
Hous. and Community Renewal, 267 AD2d 675; Augat v State of New York,
244 AD2d 835, lv denied 91 NY2d 814; Inter-Power of N.Y. v State of
New York, 230 AD2d 405). A delay in filing a claim will not be excused if a
claimant's damages are reasonably ascertainable, even if the damages might be
indefinite to some extent (Arbor Hill Partners v New York State Commr. of
Hous. and Community Renewal, 267 AD2d 675, supra; Ton - Da - Lay,
Ltd. v State of New York, 70 AD2d 742, 743, appeal dismissed 48 NY2d
629, 653, lv denied 48 NY2d 612; Otis El. Co. v State of New York,
52 AD2d 380, 383). The amended claim asserts that the claim accrued on October
16, 2002 alleging that this is the date the damages were discovered (see Amended
Claim, Paragraph 4). If this is the date the claim accrued, then the notice of
intention served on November 15, 2002 was timely and the claim and amended claim
are also timely served and filed.

Claimants assert that on October 1, 2002, at Mr. Kaufman's request, Dr. J. Evan
Ward inspected claimants' waterfront properties and that on October 16, 2002 Dr.
Ward provided Mr. Kaufman with a report detailing the destruction of the
ecological habitat. Claimants assert this is when their damages became
reasonably ascertainable.

However, in both Paragraph 45 of the amended claim and Paragraph 57 of Mr.
Kaufman's affidavit in opposition to the motion it is stated that on April 30,
2001 Ms. Atwood sent a letter to Commissioner Crotty along with a report
prepared by Nicholas Stramandi, P.E. of the VSA Group which "detailed the loss
and damage to the marshland and migration of the wetlands" (Amended Claim,
Paragraph 45 and Exhibit FF attached and Kaufman Affidavit Paragraph 57). Mr.
Stramandi's report is dated April 12, 2001. However, also attached to Mr.
Kaufman's affidavit in opposition as Exhibit B is a report entitled "Coastal
Wetlands and Intertidal Zone Changes at South Sea Wall 1320/1330 Flagler Drive,
Mamaroneck, NY 10543" prepared by Mr. Stramandi and dated December 8, 2000. Mr.
Stramandi's report states:

"VI. CONCLUSIONS

A. The improper and unauthorized enlargement of the adjacent property owner's
gangway foundation with top elevation above high tide is the sole cause for the
loss of wetlands, soil accretion and scouring that has occurred in the
intertidal zones along Mr. Kaufman's sea wall.

B. The new concrete structure has significantly modified wave and current
energy reaching the intertidal zone thus generating the coastal wetland changes
and intertidal accretion and scouring currently present. The elevated concrete
structure has essentially been built perpendicular to the adjacent property
owner's sea wall and has created a partial full-time barrier where one did not
exist before thus causing:

1. a significant reduction in wave energy reaching the intertidal zone due to
incident wave reflection and refraction.

2. constraints to the normal tide flow in front of both Mr. Kaufman's
properties and the adjacent property owner's sea wall. The change in flow
has:

a. significantly modified the wetland configuration

b. caused scouring at the ends of the breakwater and erosion of in situ
soils at the breakwater ends causing toe wash out of stabilizing soils

c. generated considerable soil accretion along Mr. Kaufman's sea wall

d. created previous non-existent accretion area along the protected side of
the concrete structure where none existed before. (See photo 2.)

C. Intertidal zone changes along both properties will continue until a new
natural equilibrium is achieved..."

Thus, claimants damages appear to have been reasonably ascertainable by, at the
latest, April 12, 2001, if not by December 8, 2000. It is possible that damages
were reasonably ascertainable even earlier than December 8, 2000 based upon Ms.
Atwood's correspondence dated May 2, 2000 addressed to Governor Pataki and the
then DEC Commissioner Cahill wherein she states:

"The tidal wetlands have been effected!

This Dam has obstructed and altered the movement of the water flow.

We have a new sand beach in front of one of our properties.

The sea grasses are gone in the area surrounding the Cement
Dock/Deck/Dam.

I am not a marine specialist, so I do not know the other specific changes that
have occurred, but there appear to be many" (see Exhibit DD, Page 2 attached to
Amended Claim).

The Court has reviewed the reports of various scientists and a professor of
civil, environmental and ocean engineering prepared in early 2003 regarding
claimants' damages (see Exhibits A, F, G, H and I attached to Kaufman Affidavit
in Opposition). These reports do not change the conclusion reached by Mr.
Stramandi in December 2000 and reiterated in April 2001. Thus, based upon the
record submitted, the Court concludes that the latest date claimants' damages
were reasonably ascertainable was April 12, 2001 and thus the claim accrued on
that date. Claimants had 90 days from that date to properly serve a notice of
intention upon the Attorney General or serve and file a claim. This claimants
failed to do. The notice of intention was not served until November 15, 2002,
more than 90 days after accrual. As the notice of intention was not timely
served pursuant to Court of Claims Act § 10 (3), it did not extend
claimants' time to serve and file the claim. The claim which was served and
filed more than 90 days after accrual is untimely as is the amended claim. The
failure to timely comply with the statutory filing requirements of the Court of
Claims Act is a fatal jurisdictional defect and the claim must be, and is
hereby, dismissed (see, Byrne v State of New York, 104 AD2d 782, lv
denied 64 NY2d 667; Calderazzo v State of New York, 74 AD2d
954).

As the Court has dismissed the claim, there is no need to address the remainder
of the State's motion. I do note in passing however that the gravamen of this
matter seems more suited to an Article 78 proceeding than to an action in the
Court of Claims.